A Legal View of the 22nd of July

Yesterday we had quite a discussion in the comments sections of a couple of posts concerning the police action that resulted in the death of Jean Charles de Menezes (whose body was flown home earlier today).

One of the participants in yesterday's discussion pointed us in the direction of an article by John Gardner, a Professor of Jurisprudence at the University of Oxford, and occasional Visiting Professor at Yale Law School. In it Professor Gardner points out some of the legal ramifications of the shooting which is handy as none of those involved in yesterday's discussion (to our knowledge) had the kind of legal training to talk in depth about just how the actions of the police involved and the arguments stemming from them would cope under legal scrutiny. He goes on to voice concerns about new legislation.

It's because of our own similar concerns that we believe it necessary to continue to voice reaction, ask questions and encourage more debate whenever possible.

It's an interesting and thought provoking piece so we pass the link on for you to read.

A vigil to mark one week since Mr Menezes's death will take place at 5.30pm on Friday in Parliament Square while an inter-religious faith service will be held at Westminster Cathedral to coincide with his funeral in Brazil.

Sorry to drag this out further, and feel free to point me to any places where these points have been addressed before, but I still think people are thinking too black and white regarding the shooting - right or wrong. If evil people dressed differently to non-evil people, life would be so much easier, but unfortunately they don't, so there will always be grey areas.

John Garner makes a valid points, but I'd like to raise a few general issues.

1. It's easy to be wise - and often, before - the event. It's also for all of us to sit behind a computer in an office and say what should or shouldn't have happened. A policeman is trained to react coolly and make reasoned judgements under pressure, quite rightly. But I come back to one of my earlier points - this was a 1/25,000,000 mistake. Regardless of what Mr Menezes looked like, his behaviour caused serious concern - don't forget, backed up by the fact he came from a flat under surveillance - to the policemen there, rightly or wrongly. For better or for worse, the law does cover the shoot-to-kill policy (part of Operation Kratos, which came into effect long before 7th July). That comes from lessons learnt by other police confronting suicide bombers. The only place to shoot them is in the head; in the chest could set off the explosion - anywhere else, the man can activate the explosive. (I see the point that Mr Menezes, had he been a would-be suice bomber, could have set it off at any point, but we think about the confined space that a tube train affords - that means many more casualties, which was clearly the point of the previous bombers.)

2. No one has addressed the 'what-if' situation as yet. Say he was a suicide bomber, and dozens of innocent lives were saved by the police's actions. Would that be ok, then? Would we thank the police? The alternative doesn't bear thinking about.

3. Garner's final point -

"'The real threat to the life of the nation ... comes not from terrorism but from laws like these.' Quite right. Some extra risk of being blown up by fanatics on the way to work is one of the prices we pay for living in a free society. Let's make sure we keep it that way." It is a REAL risk. For someone fortunately unaffected directly by the bombings, it's a risk. This is a terror campaign. Eventually the risk will affect you or someone you know. As for the 'laws like these' line... people say the same thing about ID cards, about CCTV, about Big Brother. Let's be honest, how have these laws affected YOU? Police aren't on the look-out for ordinary, law-abiding citizens, they're on the look-out for wrongdoers. It will affect people such as the man Jon Snow talked about. It's dreadful for ordinary Muslims, ordinary dark-skinned people, who now draw attention to themselves simply because of who they are. But until we have a spate of suicide bombings by white, Anglo Saxon, English born-and-bred, suspicion will always fall that way.

Garner's question about books defending anarchy or terrorism being banned; naivety, pure naivety. It's like the story of bananas needing to be of a certain curvature. It's nonsense. People will be allowed to defend terrorism, to a point - though rightly, not condone it or encourage it. Laws like this are trying to prevent two things; terrorism (or political violence, as he puts it), and racial violence (imagine an Asian guy trying to defend the bombings in a pub in Essex).

What we also don't know - we're not told so as not to panic us - how many threats have been averted by the actions of police.

Final point: Mike, you say you get off at the next stop if you see someone suspicious. That's easy for you to do. You don't have a job to protect the people around you. You, like me, would rather pretend none of this has happened or is likely to happen again. For the police, their job is to allow us to be right.

Nick

Sorry, that should have been Gardner...

corran

I read his points...but he clearly missed out on the panic v reason loophole in the anti terror laws which clearly states that.

â€œWhen feeling jumpy, citizens have the right to blow innocent people's brains out if they feel it will temporarily calm there nerves and as long as those around them are jumpy enough to pretend they're cool with that. Also if you donâ€™t like the look of someone you can lock them upâ€¦just for thatâ€¦and you donâ€™t even have to tell them that.â€

I'm a little shocked at how willing people have been to allow the country to turn into a police state. Itâ€™s a little like that movie Alive where theyâ€™re all likeâ€¦â€What happens on the mountain stays on the mountain you guys. Okay? Now dig in.â€â€¦not really because that was more like survivalâ€¦buhâ€™â€¦ you geâ€™ me bruv? innit?

If this is a war on terror (or "terr" as GW likes to call it)...shouldn't horror films be banned? Or...maybe we should define it.

corran

""Let's be honest, how have these laws affected YOU? Police aren't on the look-out for ordinary, law-abiding citizens, they're on the look-out for wrongdoers.""

Let's ask the people how they've been affected. Starting with this young man here... excuse me sir what's you're name?"Jean Charles de Menezes"Are you affected by any of this?"Well no because thankfully I was just shot to death. And I think everyone is doing a wonderful job. I love it here in England."Thank you...Back to you Nick.

corran

Jean Charles later added that he wished he was still alive.

Tina

There is a lot of information about this incident that needs to be released to the public. For instance, his family claims that they were initially told by the police that he was wearing a denim jacket, not a puffy jacket, and that he used his travelcard, not that he jumped the barricade.

I want the police to do everything reasonably necessary to protect the public. That said, to my mind, shooting a person eight times in the head when (a) he had already been pinned down, (b) onlookers attest that they did not hear the police identify themselves as such, and (c) he had been allowed to travel on a bus, in addition to the discrepancies identified above, does not constitute either responsible police work or something that is reasonably necessary.

Yes, if he had been a suicide bomber we would all be applauding the police officer now. But surely the pertinent point here is that we need to make sure that the police acted correctly in this instance.

Nick

You miss my point.

We're not being turned into a police state. Think about your life over the past three weeks. Get up. Go to work. Eat lunch. Come home. Go out. All these things, we're still allowed to do, albeit in the presence of armed police. Yes, Mr Menezes was. like you and me, innocent, but he was killed. Gardner says it's worse to be killed by someone in authority than by someone not in authority. Is it? Your crass paragraph about Mr Menezes could be applied, the other way around, to the victims of July 7th. I wonder what those left disabled by the bombings think of the whole situation.

As for those now being stopped, where before they were not stopped, that is extremely unfortunate. It does seem on the face of it that anyone with dark skin and a rucksack will be stopped and searched. Probably 1 in 500,000 will be a terrorist. It's not the police's fault that they fit the rough profile. It's the tiny minority spoiling it for the vast majority. And on the flip side, I was evacuated from my train and from the entire Elephant and Castle station the other week because someone left a rucksack on the seat. It's a pain in the arse, it's not my fault, it's nothing to do with me, but I'd rather the police took no chances than I end up dead.

As I say, it's easy for us to sit here and write this stuff. Until the risk comes to you, until you're in that situation, you will never know what you actually think.

pay special attention to the reasoning she throws around after she speaks to the FBI.

corran

"It's a pain in the arse, it's not my fault, it's nothing to do with me, but I'd rather the police took no chances than I end up dead."

what if that meant shooting you in the head?

Nick

I can't honestly say that if I was on the same flight, I wouldn't feel the same.

Having said that, I'm not paranoid about going on the tube and I haven't avoided doing so since 7th July. I know the chances of me being killed or injured in a suicide bombing are extremely slim.

I'm interested to hear what Mike would do, given he couldn't get off the plane "at the next stop".

Nick

Corran, you made that point and I addressed it.

"Your crass paragraph about Mr Menezes could be applied, the other way around, to the victims of July 7th. I wonder what those left disabled by the bombings think of the whole situation."

corran

I think i speak for all the victims of July 7th when I say "We don't want to be shot in the head."

Nick

Well I'm sure they'd be glad to have you as a spokesperson, Corran.

corran

(And Iâ€™m sure theyâ€™d love you to speak at Mr. Menezes funeral)

(â€œWe're not being turned into a police state. Think about your life over the past three weeks. Get up. Go to work. Eat lunch. Come home. Go out. All these things, we're still allowed to do, albeit in the presence of armed police. Yes, Mr Menezes was. like you and me, innocent, but he was killed.â€)

I didnâ€™t miss your point. You missed mine. Yes most of us can get up go to work but some of us donâ€™t make it on the train without being killed (I cannot stress that enough) â€¦and they said it could happen again. And you are fine with that. And while you continue to say â€œwhatever it takes to keep me safeâ€ governments are rewriting laws. Itâ€™s a knee-jerk reaction. Itâ€™s not thought. Itâ€™s fear. You are changing your way of life by just accepting it. So before you know it youâ€™re freedoms are taken away.

mike

Hey guys - I would have got back to this sooner but I had to pick up my girlfriend's relatives from London Bridge station. Even though they come from Israel they were bemused by the high police presence on display there this evening. Place was swarming with coppers - lucky they were on hand because there were PLENTY of tourists needing directions.

I'm interested to hear what Mike would do, given he couldn't get off the plane "at the next stop"

Nick - I wouldn't want to get off the plane even if I could. I fly a lot and the second I'm in my seat I have my nose in a book and the second the seatbelt sign is off I have a laptop open and a movie on. The first thing I'd know about suspicious looking A-rabs is when I later read paranoid crap like the story linked to above.

I was on the first scheduled flight out from San Francisco following 9-11 after the trip was extended due to the airports closing. We'd have been home sooner but for some dick out in the bay with a rifle on the phone to the FBI saying that if HE was out there then the terrorists sure as hell were too. That kept the airports closed a while longer.

That particular plane trip was as uneventful as any other except for a prolonged wait at the airport beforehand. Just gave me time to catch up on my reading. I was as concerned then about terrorists as I am now or for that matter of the plane being hit by lightning or simply falling out of the sky.

Lots of people seem to prefer running around paranoid as fuck and generally being miserable and scared out of their wits about something that in all likelihood would never happen to them.

Those of us that don't buy into the terror option just seem to have a better time.

mike

Some other points.

Nick - sure it would be simpler if the terrorists were easy to spot, but aside from the fact they can blend in perfectly they are also tiny in number. You could flood all the trains in London with armed police and stop everyone that looked even remotely suspicious and still they'd get through if they wanted to. The reason they blend is one of London's strengths - the oft quoted melting pot.

I'm still waiting for clarification on what exactly Mr Menezes did to come under police scrutiny in the first place. He didn't jump a barrier or wear 'odd' clothing so now we're back to the fact that he left a certain address. Has it been established that he left a specific flat or just a building filled with flats - one of which was under surveillance? Why did he pop up on their radar at all?

Yes the shoot to kill policy has been in effect for some time. That in itself is worrying. And it's all well and good that it's based on the training that officers from other forces confronted with suicide bombers have gone through, but the police have yet to establish that the men they're trying to stop are indeed intentional suicide bombers. If we're after men carrying explosives that lack the will to use them while endangering their own lives then the shoot to kill policy should not apply. Nor should it apply to anyone who simply may be a suicide bomber because the terrorist to innocent person ratio is staggeringly one sided.

People seem to think this line of reasoning gives the would be suicide bomber the upper hand when confronted by police, but it actually gives the potentially innocent person the benefit of the doubt which is what the police should be focusing on. The suspected bomber they caught in Birmingham was brought down with a stun gun so again I see no reason for armed police to be 'flooding' the capital as tonight's Standard gleefully proclaimed.

Again I'm not an expert but I doubt the law cares very much for 'what if' scenarios. The alternative that doesn't bear thinking about has already passed. An innocent man was killed and the reasons for that 'mistake' are looking increasingly dubious.

The 'You've nothing to worry about if you're innocent' line is an old one and probably discussed and argued over in detail in just about every forum on the Internet. For the record I am opposed to ID cards, but that's a different argument that will undoubtedly be raised on Londonist at another time.

durviscz

I can't honestly say that if I was on the same flight, I wouldn't feel the same.

right, sure.

onbut afterwards?

when the FBI had proven your reaction to be paranoia?

you wouldnt just chalk it up to silliness and, thinking thoughts about the nature of assumption, go about your day?she ends her tales of the travails of being an 'aware' american on a flight with brown people by saying

So the question is . . . Do I think these men were musicians? Iâ€™ll let you decide. But I wonder, if 19 terrorists can learn to fly aircraft into buildings, couldnâ€™t 14 terrorists learn to play instruments?

this woman started a campaign based upon her own irrational response to a combination of terror-noia as fanned by the government of her country and media outlets like FOX news and the presence of a brown skinned band on her flight.

despite the fact that they were not terrorists according to the FBI (who one might say should have a better idea than she) she was still convinced that something should have been done.

her initial respnse is understandable.

her apparent lack of self awareness and inability to understand her own part in the creation of her fear are more worrying.

Certainly, terrorists are a versatile and multi-skilled lot. Nothing, as we know, focuses the mind like terror, which is why terrorists score so highly in SATs and other standardised tests. However, other people can learn to play instruments as well. People who are not terrorists. People whom the FBI could examine and find not to be terrorists. Like musicians.

However, this is not the only problem here. Why would these terrorists have learned to play their instruments? To the best of my knowledge, it is rare for a law enforcement agent to demand that an individual demonstrate that they are able to play an instrument in order to prove a lack of criminal intent. In fact, the only substantiated episode I can think of is the episode of Fame where Leroy recovers a stolen cello from a pawn shop, but is stopped by a policeman on his way to return it to its owner and ordered to play "Happy Birthday".

1. Your statistics are wrong. It was, to be generous to the police, a 1 in 250 event. They stated yesterday they have been in 250 such situations and so far they have killed 0.4% of the innocent people they have encountered.

2. What if is entirely facile and jejune. That's why no-one cares to address it. Supposing I see someone carrying a bag. Am I allowed to shoot them? "what if they were a suicide bomber"

3. Wasn't de Menezes an ordinary law-abiding citizen. What did he do wrong? He ran away from a gang of armed men. Seems reasonable behaviour to me.

4. Who defines terrorism?

5. Why was de Menezes suspicious on the tube, but not on the bus? Do terrorists not do bus bombings?

Nick

A lot of points for me to answer, I'll try to do it briefly!

To answer Mike's points about Mr Menezes, we don't know the exact reasons why the police shot him, and not the other 7 - or 250 - people, but to them, at that time, they thought they had good reason. I'd like to think I'd not shoot him or anyone else, but if I was in that situation, who knows?

I wondered if the 'suicide bombers' were actually suicide bombers at all, too. They might not have been. Trouble is, there might be some intentional suicide bombers out there.

The innocent person to terrorist ratio is indeed staggeringly one-sided. Unfortunately, so are the odds against London being hit by a suicide bomb. As the IRA put it, "We only need to be lucky once; you need to be lucky every time." That's unfortunately the way of the world at the moment.

And I'm not "paranoid as fuck". That's because I'm pretty philosophical, and because I trust our police service to do what's in the interest of the vast majority of UK citizens. If you think the police - and politicians, for that matter - are there to deliberately make our lives miseries, then you're in a very sad frame of mind. Terrorists are there to make our lives miseries.

Durviscz, fear is an irrational thing. I'm afraid of heights. I don't know why. People are afraid of spiders, of fruit, of the outdoors. "We're Not Afraid". No, I'm not afraid either - but I'm a bit more aware. And I'm aware of our part in this whole fear. At the end of the day, I'm more afraid of terrorists than I am of the police.

I understand your point about terrorists learning to play musical instruments - well if these terrorists are willing to ingratiate themselves into British society in as normal a way as possible - go to university, work in a chip shop, play cricket, then why is playing musical instruments so preposterous? Of course it's not happened so far. It's outlandish. But what about shoe-bomber (as the media called him) Richard Reid? That's outlandish.

Ian, 1: It's kinda preposterous I agree to put a statistic on being shot. But I stand by my point that at the moment you're less likely to be shot by the police than you are to be killed by terrorists.

3: He was unlucky. He was naive to run away. He paid a price more than he could have realised. On the flip side, Shehzad Tanweer is let through by police because they're not 110% he's a suicide bomber.

4: I don't know! I guess, to some, terrorism is being shot by the people designed to protect you. But I reckon most of us will think of it as trying to kill innocent people to achieve their means. Emphasis on the trying.

5: I don't know why police didn't intervene before he entered Stockwell. I guess some sort of explanation will come out over the course of time.

stanley

I suppose it's possible the police didn't intervene before he entered stockwell because they weren't actually following him before he entered stockwell, and that was a post-mortem fabrication. How, exactly, do "30" undercover agents trail a suspect on a bus?

Please note the current smear campaign regarding his passport stamp, as if that somehow justified his killing, as a non-person.

You can grovel at the feet of the police all you want, but that only makes you a police foot groveller.

kief

No one has addressed the 'what-if' situation as yet. Say he was a suicide bomber, and dozens of innocent lives were saved by the police's actions. Would that be ok, then? Would we thank the police?

If that had happened, I think we would be asking the question, "why did the police follow a bomb-wearing terrorist all the way from his house, onto a bus, to the tube station, and then confront him there in a way that allowed him to get away and actually run down into the station, and onto a train? How did they so badly lose control of the situation where they had him under surveillance at his house, to the point that he was a split second away from setting off his bomb on a tube train, and that the only way to prevent it was to desperately pump him full of bullets?"

If he had succeeded in setting off the bomb and killing civilians, the tabloids would have those cops' pictures on the front pages with calls for their blood for making such a huge blunder.

I don't know though, this is based on the original version of events. I'm not sure whether to believe Menezes family's claims of what the Met told them, they are (understandably) distraught and angry. The scenario of Menezes panicking and running, leading the police to believe he had to be a terrorist, is plausible, even if it means mistakes were made.

If Menezes wasn't running then we are missing a lot of pieces of the story that leads to the cops shooting someone at random, without any reason to suspect him of being a terrorist.

kief

To follow up, with reference to Stanley's post, the idea of the "chased him into the train" story as a coverup seems a stretch. There were plenty of eyewitness reports shortly after that mentioned the cops chasing someone who jumped the barrier, and chasing someone onto the train and shooting him there.

Granted there were plenty of inconsistencies, such as one report that he had wires coming out of his belt, and another saying he was wearing a backpack, but these kind of inconsistencies are to be expected in something so shocking that happened so quickly. The overall story of men chasing and shooting someone who was running from them seems pretty consistent, though.

So I don't have much of an idea of what might have happened that was not only different from, but so much worse than the story we've been told, that it needs covering up.

stanley

"There were plenty of eyewitness reports shortly after that mentioned the cops chasing someone who jumped the barrier"

Actually, there are plenty of news stories that say there are eyewitness reports that he jumped the barrier, without having quoted any eyewitnesses. These stories seem to be merely repeating the police version of events. I don't have a television, perhaps these eyewitnesses who saw him jump the barrier have been on TV? There was probably alot of barrier jumping going on the the cops who were following him, so that may explain it.

Since the police have allegedy told the family that he did not jump the barrier, one can't but question the entire original police narrative.

Is it likely that they did not follow him from home? One would hope not. But questions to that regard:

1. One news story said that he did not actually spend the night at his own apartment, but at a friends.

2. How do you conduct a surveillance with thirty officers? Did they quickly rent a second bus to follow the first?

I think it's likely that they followed him from some point.

I also think it's likely that he was never warned until the final seconds, that he was merely running to catch the train, or that he believed he was running from criminals.

I think it's possible the police executioners were greenlighted for the kill, and unexpectedly, the victim suddenly took off running to catch the train, unaware of their existence. They perceived this as a hostile action, chased him without sufficient warning, or their warnings were lost in the hubbub of the station, and then they killed him.

kief

Stanley, are you suggesting the cops were ordered to execute the suspected terrorist who turned out to be Menezes? That sounds incredibly unlikely to me, surely they'd want to interrogate him?

Unless we're getting into theories such as the Met didn't need to interrogate him, because they already knew everything about the plot, because they organised the bombings themselves, in a vast conspiracy with Osama, the CIA, Mossad, and Kim Jong-il to exploit the secret oil reserves under Stockwell station?

stanley

Kief, most likely the stockwell incident was part of a conspiracy to exploit the vast fungus reserves under your toenails and in the moldy folds of your cerebrum.

Greenlighted for the kill, means "authorised to use deadly force." - which they appear to have executed hastily and without sufficient caution. And "Execute" is most certainly the correct word, as they had totally immobilised him before pumping seven bullets into his brain.

Bunglars (the street cops), liars (police spokemen), and scoundrels (just about everyone else). Can't paint it any other way.

He wasn't wearing a heavy coat, he didn't jump the barrier, he wasn't running away - he was running to catch a train. The hit squad misinterpreted this as an attempt at escape, so they took him out. That's the most plausible explanation. He had been stopped by police previously. He no record of running, he had no reason to run.

It's the simplest explanation, and in the absence of definitive proof otherwise, the best.

Tony Odiadi

I found Prof. Gardner's opinion on the July 7th bombing and the place of law and conduct of the Police most educative. The danger of wanton abuse of basic civil rights lurks so easily in the aftermath of the terrorist acts. Yet, legal standards cannot be compromised out of mere opportunistic considerations. The heightened vigilance which the civil society must impose on itself in the current circumstance, is what is expected of the Police as they try to protect the entire society. The tragedy of Meneze's case should be a warning to the Police and the authorities that innocent people should not become so vulnerable to harm from those who ought to protect them in the first place.

Tony Odiadi,GULC,Washington, DC

Pierre

Perhaps Tony the USA should get their own house in order before quoting Prof G. at us, it's you guys who have the Patriot Act in force.

So what did become of your librarians spilling the beanz on dubious books were being borrowed etc...?

You all voted for Bush and have plenty of work to be done to get your house in order before giving the EU a lecture on legal standards, police etiquette and morality.

While you're at it, how about a Supreme Court that reflects the 21st Century and getting your military dollar out of Israel?

Good grief, cue Star Spangled Banner.......the world is revolting

Tony Odiadi

Pierre, but you miss the point. This is not about America but the British society. Is this an ostrich game? It shouldn't be. You can be vigilant without needless profiling of innocent citizens. The US has proved it is very workable since 9/11, so follow suit. If the Police is sen as antagonistic, how will the citizens assist in fighting terrorists? The key is to maintain legal standards- equal protection under the law.

durviscz

tony, i would ignore pierre if i were you.his conflation of the one american with the american government is ridiculous and clearly points him out to be a lazy thinker.you should feel free to comment on our police force and government for as long as you have a point.i for one do not feel my right to comment on international politics is governed by tony blair's successes or failures, and i dont see why you should be governed by bush's.

the patriot act being in effect is not a barrier to citizens of that nation having opinions, and neither should it be.